Regulation of Lobbying (Amendment) Act 2023
The purpose of the Regulation of Lobbying (Amendment) Act 2023 (the Act) is to amend the Regulation of Lobbying Act 2015 (the Act) to build on the existing strong legislative foundation and further strengthen Ireland’s lobbying laws to ensure that the regulation of lobbying framework remains up to date and fit for purpose.
The Act provides for:
- the strengthening of the existing legislation and its enforcement, including the introduction ofan anti-avoidance clause and the enhancement of the operation and enforcement of the Act, which
The 2023 Act provides for the introduction of a system of administrative sanctions to be administered by the Commission relating to breaches of the restrictions on post-term employment as a lobbyist, and avoidance or circumvention of a person’s obligations to register and submit returns.
The system provides for the imposition of minor or major sanctions following the carrying out of an investigation by the Commission. Prior to a decision being made by the Commission, a person can make a submission to the Commission regarding the investigation report or can request that an oral hearing be held. The Commission can also hold an oral hearing where it considers it proper to do so for the purpose of assisting it to make a decision, or for the purpose of observing fair procedures.
The conduct of oral hearings is determined by the Commission and evidence may be taken on oath by the Commission. Provision is made for oral hearings to be in public, but the default position is that they will be held in private.
The Commission must notify the person of the decision made and that there is a right to appeal against the decision. Where a major sanction is imposed, this must be confirmed by the Circuit Court.
A person cannot be the subject of both an administrative sanction and a criminal penalty for a contravention under the anti-avoidance provisions.
The major sanctions are a monetary penalty of up to €25,000 and/or a prohibition from lobbying for up to 2 years. The minor sanctions are any combination of advice, a caution or a reprimand.
There matters to be considered by the Commission in determining the amount of any financial sanction to be imposed under the new system of administrative sanctions that relates to breaches of restrictions on post-term employment as a lobbyist and/or the new anti-avoidance clause. Such matters include those relating to
- the need to ensure that any sanction imposed is appropriate and proportionate to the contravention concerned and will act as a sufficient incentive to ensure that any like contravention will not occur in the future,
- the gravity and duration of the contravention concerned,
- the extent of any failure by the person to cooperate with the investigation concerning that person and
- the repeated occurrence of the contravention concerned by the
Circuit Court Appeal
Any person, subject to a decision of the Commission to impose a minor or major sanction under the new system of administrative sanctions relating to breaches of restrictions on post-term employment as a lobbyist and/or the new anti-avoidance clause, may appeal that decision to the Circuit Court. The Circuit Court shall dismiss an appeal if it is of the opinion that the appeal is vexatious, frivolous, an abuse of process or without substance or foundation.
The Circuit Court may consider if the Commission, in making its decision, committed a serious or significant error of law or fact, or a series of minor errors of law or fact which, when taken together, amount to a serious or significant error. It can also take into account whether the Commission complied with fair procedures in making its decision, and if the sanction imposed by the Commission was appropriate and proportionate.
The Circuit Court can take into account the record of the decision and any submissions, etc. given in evidence which may not be part of the record of the decision, as it considers appropriate.
The Circuit Court can confirm the decision or annul the decision and substitute such other decision as the Circuit Court considers appropriate or remit the matter to the Commission for reconsideration and the making of a new decision.
A decision of the Circuit Court may be appealed to the High Court on a point of law only. This appeal must be brought within 21 days of the notice of the Circuit Court’s decision.
Where a person does not appeal a major sanction, the Commission must apply to the Circuit Court for confirmation of the decision to impose the major sanction concerned. On hearing the confirmation application, the Circuit Court can confirm the decision, or where it is satisfied on the evidence before it that a manifest or fundamental error of law has occurred which undermines the basis of the Commission’s decision, annul the decision and substitute a more appropriate one, or remit the matter to the Commission for reconsideration.
Prior to making the application for confirmation, the Commission must seek the consent of the person concerned to the imposition of the major sanction at issue. Where the person concerned consents to the imposition of the relevant sanction, the Commission can make its application in court without the person concerned being present. Where the person concerned consents to the major sanction, the sanction only takes effect when the Commission’s decision is confirmed by the Circuit Court. The Commission must, as soon as possible, inform the person concerned about the decision of the Circuit Court, the date on which it was made and the date from which that decision should take effect.
The Commission must publish a code for authorised officers and the Commission for the conduct of investigations, and for the Commission for the conduct of proceedings before the Commission relating to the new system of administrative sanctions for breaches of restrictions on post-term employment as a lobbyist and/or the new anti-avoidance clause.
Authorised officers or members of the Commission must have regard to any such published code in the performance of their functions as they relate to investigations or proceedings, as appropriate. The Commission may make regulations providing for the conduct of investigations and proceedings before the Commission, having regard to the need for fairness in the conduct of such investigations and proceedings, in particular the need to address any conflicts of interest that may arise.
Any notice (which includes any document or notification) required to be given to a person in relation to a former relevant DPO’s application for consent to take up employment or a position during the 12-month ‘cooling- off’ period, or concerning the procedures governing the imposition of administrative sanctions, must be in writing and, where an email address has been provided, can be delivered by electronic means to that person.
Where the notice cannot be sent electronically, or the Commission believes it is more appropriate to do so, the notice can be sent by post to the person concerned.
Delegation of Functions
Certain functions cannot be delegated by the Commission to be performed by staff members of the Commission, specifically the procedures relating to the imposition of administrative sanctions up to the point at which the Commission makes its decision on whether there has been a breach of the anti-avoidance clause or the provisions regarding consent applications. The functions of the Commission may be performed by a division of the Commission consisting of an uneven number of Commissioners, but the number cannot fall below three.